Protest Decisions

IN RE: EDWARD JONES,
Eligibility Decision 2001 EAD 179
Issued: February 23, 2001 (Corrected)
OEA Case No.: E0130111ME

On January 29, 2001, Local 341 held its nomination meeting for delegate and alternate delegate elections. Only one candidate, Michael Yagercik, also the local's president, was nominated for delegate. Only two candidates, Dennis Hubal and Edward Jones, were nominated for alternate delegate, one of whom (Hubal) was nominated by Yagercik. The other, Jones, was protested by Hubal on January 30, 2001.

In his protest, Hubal claims that Jones is ineligible because he had not timely paid his dues in February 1999 and February 2000.

Election Administrator representative Lois M. Tuttle investigated this protest.

In order to be eligible to run for delegate or alternate delegate to the IBT International Convention, a member must be in continuous good standing with his local union, with his dues paid to the local union for a period of 24 consecutive months prior to the month of the nomination with no interruption in active membership due to suspensions, expulsions, withdrawals, transfers or failure to pay fines or assessments. Article VI, Section 1(a)(1) of the Rules for the 2000-2001 IBT International Union Delegate and Officer Election ("Rules"). Pursuant to Article X, Section 5(c) of the IBT Constitution, all cash-dues paying members are responsible for paying their dues on or before the last business day of each month within the 24 month period in order to retain good standing status for the purpose of running for delegate, alternate delegate, or local union office.

According to the local's TITAN record, Jones is a member who pays his dues on a cash basis. Jones' payments are shown as being paid late on two occasions within the twenty-four month period: his February 1999 dues on March 3, 1999, and his February 2000 dues on March 1, 2000.

Jones disputes that his payment for either month was late, claiming that his wife timely mailed a check on his behalf for each month at issue. As evidence, he has provided copies of two checks (one dated February 22, 1999 and another dated February 20, 2000) and statements by his wife about her business practices in dating and mailing Jones' monthly dues checks over the last ten years. Yagercik, who is not merely the local's president but also the only employee handling the local's business and office work, states that Jones' second check dated February 20, 2000 may have been received at the local union hall timely but recorded late due to Yagercik's absence from the local for most of the latter part of February 2000. Based on Yagercik's, Jones' and Jones' wife's statements and evidence, we find that Jones' dues payment for February 2000 was received timely.

Yagercik states that Jones' check for the month of February 1999 was received untimely. Yagercik provided a collection sheet dated February 25, 1999, on which Jones' name does not appear; two collection sheets dated March 3, 1999, on the first of which Jones' name does appear; members' TITAN-generated receipts from February 25 and 26, 1999 which correspond to the entries on the collection sheet dated February 25, 1999; and Jones' TITAN-generated receipt dated March 3, 1999. Yagercik states that he does not usually keep copies of any members' dues checks or the envelopes in which they are mailed. As dues are received, he fills out a collection sheet every few days. He does enter all dues received by the last day of the month on a collection sheet dated within that month (although not necessarily of the precise date recorded on the sheet). Thus, the collection sheet dated February 25, 1999, the last Thursday of that month, contains entries of members whose dues had been received both on that day (Thursday) but also the following day (Friday, February 26, 1999), the last business day of that month.

Yagercik also states that the next two collection sheets he provided, both dated March 3, 1999 (a Wednesday), actually represent dues received not merely on Wednesday but also on the earlier two days (Monday and Tuesday, March 1-2). Jones' name appears toward the bottom of the first of these sheets. Thus, it appears that Jones' check may have been received on either March 1 or 2, as opposed to March 3, 1999, the date on the collection sheet and the TITAN-generated receipt. Regardless, Yagercik insists that the check was received after February 26, 1999, the last business day of that month.

While a cash dues paying member is responsible for paying his dues timely each month, Election Officer Cherkasky adopted the IBT's "reasonableness" test for remittance of dues where a member makes "reasonable, affirmative efforts to pay dues in a timely fashion, but whose dues are received late by the local union due to circumstances beyond the member's control." McDonald, E132, p. 5 (after remand) (August 14, 1998), aff'd, 98 EAM 368 (September 3, 1998). In the case of a member who attempts to cash-pay by mailing a check to the local union hall, the IBT has held the member's check to be considered timely where it is mailed in such a time and manner that it could reasonably be expected to be received by the last business day of the month. Id., and cases cited therein. Like Election Officer Cherkasky, we will follow the IBT's rulings on this issue.

In this case, Jones' wife states that in accordance with her regular practice, she mailed Jones' check dated Monday, February 22, 1999 either that same day or the following day from a local post office. Yagercik disputes this, stating that he has kept the envelope from Jones' January 2001 dues payment, postmarked several days later than the date on Jones' check, as proof that on at least one occasion Jones' wife has not mailed Jones' check within one day of the date written on the check. However, Yagercik admits that he does not have the postmarked envelope to controvert Jones' wife's account of when she mailed the check dated February 22, 1999. In the absence of such evidence, we will accept Jones' wife's statements and her dated check as sufficient proof that she mailed Jones' check in a reasonable time for it to be received by the local on or before Friday, February 26, 1999, the last business day of February 1999. See Molina, E125 (March 21, 1996) (where evidence provided by the prospective candidate of timely payment was not dispositive but persuasive, the Election Officer is inclined to resolve factual dispute in candidate's favor); and Marchesi (October 8, 1997) (prospective candidate's copies of checks persuasive as evidence of mailing dates where the local union admitted that its posting practices were inconsistent and provided no corroboration of when the dues had been received).

Therefore, we find Jones ELIGIBLE to run as an alternate delegate to the International Convention.

Any interested party not satisfied with this determination may request a hearing before the Election Appeals Master within two (2) working days of receipt of this decision. The parties are reminded that, absent extraordinary circumstances, no party may rely upon evidence that was not presented to the Office of the Election Administrator in any such appeal. Requests for a hearing shall be made in writing, shall specify the basis for that appeal, and shall be served upon:

Kenneth Conboy

Election Appeals Master

Latham & Watkins

Suite 1000

885 Third Avenue

New York, New York 10022

Fax: 212-751-4864

Copies of the request for hearing must be served upon the parties listed above, as well as upon the Election Administrator for the International Brotherhood of Teamsters, 727 15^th Street, N.W., 10^th Floor, Washington, D.C. 20005, facsimile (202) 454-1501, all within the time period prescribed above. A copy of the protest must accompany the request for hearing.

William A. Wertheimer, Jr.

Election Administrator

cc: Kenneth Conboy, Election Appeals Master

William B. Kane, Mideast Area Regional Director

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